Does an employer need to obtain an employee's written agreement to be furloughed?
The HM Treasury Direction on the operation of the Coronavirus Job Retention Scheme from 1 July 2020 requires the employer and employee to agree that the employee will do no work, or will not work their full usual hours, in relation to their employment. This agreement "must be made in writing or confirmed in writing by the employer". This means that the employee can agree to be furloughed verbally, provided that this is followed by written confirmation of the agreement from the employer. The agreement, or confirmation of the agreement, can be in an electronic format such as an email. The Direction also confirms that the agreement can be made by means of a collective agreement between the employer and a trade union.
The Direction states that the agreement must specify "the main terms and conditions" on which the employee will do no work or will not work their full usual hours. The terms and conditions could include: the requirement for the employee not to do any work for the employer during their furloughed hours; the agreed working pattern (if they are flexibly furloughed); the pay they will receive while furloughed; and that they may be required to carry out training. The agreement must be made before the claim period, but the employer and employee can agree to vary it during that period, for example to agree a change to the hours the employee will work.
The guidance on the Coronavirus Job Retention Scheme published by HM Revenue and Customs reflects the Direction, as it requires only that employers "confirm in writing" to employees that they have been furloughed and states that "the employee does not have to provide a written response". The guidance states that the employer will need to agree any new flexible furlough arrangement with the employee and keep a written agreement confirming the new arrangement.